Williams v. W. W. Kimball Co.

• Decision Date: 03 May 1915
• Docket Number: No. 11521.,11521.
• Citation: 188 Mo. App. 646,176 S.W. 478
• Parties: WILLIAMS v. W. W. KIMBALL CO.
• Court: Missouri Court of Appeals

176 S.W. 478

188 Mo. App. 646

WILLIAMS v. W. W. KIMBALL CO.

No. 11521.

Kansas City Court of Appeals, Missouri.

May 3, 1915.

Appeal from Circuit Court, Clay County; Frank P. Divelbiss, Judge.

Action by Charles M. Williams against the W. W. Kimball Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

Fyke & Snider, of Kansas City, for appellant. Martin E. Lawson, of Liberty, for respondent.

JOHNSON, J.

This is an action in equity by a mortgagee of personal property against another mortgagee in possession of the property to have the lien of his mortgage adjudged and enforced as superior to defendant's lien. The answer admits that defendant is in possession of the property, and denies the other allegations of the petition.

The court, after hearing the evidence, adjudged that plaintiff is entitled to the possession of the property "for the purpose of enforcing * * * the lien of its chattel mortgage upon which there is now due a balance of $12,000; that defendant turn over said pianos to the possession of plaintiff; and * * * that a writ of restitution for said pianos and execution for costs issue hereon accordingly." In other words, the lien of plaintiff was pronounced superior to that of defendant.

The case was tried upon an agreed statement of facts. The subject of the controversy is the right to the possession of eight pianos which were sold and delivered by defendant, a dealer in pianos in Kansas City, to Humphrey H. Savage, who, at the time of the sale, was the proprietor of the Liberty Ladies' College; in Clay county. In partial payment of the purchase price of these new pianos, defendant had accepted from Savage at an agreed valuation eight old pianos which had been in use in the college, and for the remainder of the purchase price accepted the notes of Savage, secured by a chattel mortgage on the new pianos. By mistake of defendant this mortgage was filed in Jackson county, instead of Clay county, but this fact has no bearing upon the issues we are called upon to determine.

Before this transaction by which Savage was enabled to replace eight old pianos in his college with eight new ones he had executed and delivered a chattel mortgage to plaintiff which the latter contends was a valid lien upon the eight old pianos. Plaintiff had been the owner and proprietor of the college, and had sold and conveyed all the real and personal property belonging to it to Savage for $50,000, subject to a mortgage on the' real estate for $14,000, the amount of which was credited on the purchase price. In payment of the remainder of $36,000 Savage had executed and delivered his promissory notes to plaintiff, secured by a second mortgage on the real estate and a first chattel mortgage on all the personal property included in the sale. The mortgage described the property as:

"All pianos, organs, furniture, fixtures, furnishings, desks, carpets, library, pictures, apparatus, dining room and kitchen furniture, tables, chairs, ranges, tools, and all other personal property of every kind, nature and description in the building known as Liberty Ladies' College, located at Liberty, Clay county, Mo., which is not the personal property of the wife of said Humphrey H. Savage, or of the students and teachers in said school; it being the intention to convey in this mortgage all personal property acquired this day by deed from Charles M. Williams and wife."

This mortgage was duly filed in Clay county long before the purchase and installation in the college of the eight new pianos procured from defendant. The eight old pianos given in exchange for the new were a part of the personal property included in the sale of the college.

The mortgage to plaintiff provided that:

The mortgagor "shall keep the said personal property * * * in as good condition at least as it is in at the time of the execution of this mortgage; * * * that no property contained in this mortgage can be sold by the mortgagor, but such property may be traded in for new property of like character and higher value for the purpose of keeping up the standard of the personal property to its present grade, and if such exchange is made this chattel mortgage shall instantly apply to the new property thus secured; * * * that this chattel mortgage shall apply to all new furniture, pianos, organs, and other personal property of like character as that contained in this mortgage, if purchased by the said Savage and placed in the building aforesaid or other buildings erected on said grounds above described for college purposes."

After the installation of the new pianos the college buildings were destroyed by fire, but these pianos were saved. The troubles of Savage seem not to have come in single files, but in battalions. He was adjudged a bankrupt, and the pianos passed into the possession of the trustee in bankruptcy. It appears the trustee conceded that either plaintiff or defendant was entitled to take them as mortgagee and turned them over to defendant pursuant to an agreement of the rival mortgagees that defendant should receive them merely for safe-keeping, and without prejudice to any right of plaintiff.

The provision in the mortgage to plaintiff requiring the mortgagor to maintain the property in a condition that would not allow it to decrease in value, and to that end granting permission to him to make exchanges of deteriorating articles...